Senator REYNOLDS (Western Australia) (19:44): Tonight I rise to speak on the principle of freedom of speech. I believe there is no democratic value or individual freedom more greatly valued and oft cited in the modern Western world than the right of free speech or freedom of expression. Arguably it is the cornerstone value of all modern democracies.

At its core, democracy is an agreed way of distributing and organizing the political power of a society’s citizens. However, there is no single agreed definition of democracy or indeed of any two identical democracies in the world. But the four most consistently recognised fundamental tenets of democracy are representative government, political and legal equality, the rule of law and freedoms.

Freedom of expression is one of the most coveted freedoms for those who do not have it, and today far too much blood is still shed in seeking what we largely take for granted here in this country. But in Australia I believe this a right that is not always very well understood, and it is certainly not often discussed very well. The inherent reciprocities or responsibilities that go with the right are rarely discussed or acknowledged. I believe this is ultimately to the detriment of us all. Indeed it is not an indicator of a healthy democracy.

Our own unique liberal-democratic culture recognises that society is improved by individuals thinking for themselves and imparting their views, and then having them contested in open and robust debate so that good ideas gain traction and bad ideas wither away and die and changing social norms are reflected in the legislation of the day.

But just because we espouse individual liberties or freedoms, it does not mean that we should ever be complacent about them. As we know, freedoms are never fully free. As a society we routinely and, I argue, increasingly, accept limitations on them. We are often oblivious to the individual restrictions and the cumulative impact of the restrictions on us individually and on society.

A healthy representative democracy must foster and encourage diversity of thought and allow robust public policy debate. The current debate on section 18C of the Racial Discrimination Act is a small but important part of a much wider debate that we need to find a way in Australia to have sensibly and robustly.

In our election platform last year, the government committed to amending prohibitions on inciting racial hatred and to focus on offences of incitement and causing fear rather than on causing offence, to better preserve the right to freedom of speech. I strongly endorse and support that approach. However, last month the Prime Minister announced that the reforms to the act were off the table in order to preserve national unity and to reduce complications associated with the new counter-terrorism proposals. I fully understand and support the Prime Minister’s actions on these matters. I know this government remains deeply committed to its freedom agenda, which includes advancing measures to protect freedom of speech, freedom of religion and other traditional rights and liberties.

However, I strongly contend that it is precisely the national security issues cited by the Prime Minister that make it even more important today that we find a way to engage in a robust and free debate on where the balance should lie between freedom of speech and other freedoms, and national security restrictions. Most Australians would say that they strongly support this confluence, if not collision, of two principles—that is, freedom of speech and strong national security policies. It is the perfect opportunity for us all to learn more about the issues and engage in the debate on how we can most sensibly balance these issues in our nation. Even if it is just having a good old fashioned ding-dong around the kitchen table, on where we individually think the balance should lie, I think that would be a good thing for this nation.

There are several reasons for this, which I would like to outline. I believe this discussion is particularly important because in Australia we have few explicit constitutional protections on individual liberties, beyond freedom of religion. in section 116. I also believe that in the absence of comprehensive civics education in Australia today, many Australians are likely to assume that certain individual freedoms are a given and that any restriction would be seen as undemocratic or unconstitutional. But, as we know, no freedom is ever truly free and unrestricted. I suspect many Australians may also assume that we have the equivalent of the first amendment to the US constitution, as contained in the US Bill of Rights. But in fact our Constitution does not have an explicit first amendment equivalent to enshrine the protection of freedom of speech.

There are very good reasons why we do not have a similar bill of rights. I think in this debate it is important to understand the reasons for this. I believe the reasons are just as relevant today, if not even more important. While our own founding fathers studied the American model very carefully, they chose not to adopt it fully. So, in our Constitution we do have the similar separation of powers between the legislature, the executive and the judiciary, but we did not adopt an equivalent of the US Bill of Rights. The reason for this is that the Australian colonies were governed under a system of responsible government, where the executive government is not formed independently from the legislature, as it is in the United States. Instead, our executive is formed by elected representatives, who are elected by Australian citizens. While our founding fathers were passionate about freedom of speech and greatly admired what was contained in the US constitution, in Australia they did not want to curb legislative actions on individual liberties. This is because they understand that once you codify human rights you make it easier to limit them. Without legal definition, words can eventually take precedence over the espoused values and ideals that sit behind the words.

In fact, Robert Menzies noted in the 1960s that the men who drew up our Constitution believed that such constitutional limitations or checks on legislative action were in fact profoundly undemocratic, because to adopt them would demonstrate a lack of confidence in the will of the people. While at first blush this argument appear counterintuitive, responsible government in our democracy is regarded as the ultimate guarantee of justice and individual rights. Therefore, it is up to all Australian citizens to defend these rights. However, to defend these rights and maintain the strength of our own democracy, it is important that all Australians understand these rights and their responsibilities that are contained within them.

As President Franklin Roosevelt said:

Democracy cannot succeed unless those who express their choice are prepared to choose wisely. The real safeguard of democracy, therefore, is education.

When any of us express our right to an opinion or when you express your opinion to me, I have to accept that I might not agree with you and, indeed, it may insult or offend me. Conversely, the reciprocity is that when I speak, you also have to accept that you may not always agree with what I say and that it may, indeed, occasionally offend or insult you. I argue that this is actually a good thing, if not a great thing, for our democracy.

There is quote, rightly or wrongly attributed to Voltaire, that just about all of us will all be familiar with. That is: I do not agree with what you have to say, but I’ll defend to the death your right to say it.

While this is often cited, I think few of us really understand its implications and the reciprocity that is inherent within it. That is, all citizens have the freedom to think what they want and to freely say what they think. But like every rule, it always has exceptions. The Universal Declaration of Human Rights states that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

But as we know, in any democracy it is always a matter of balance and freedoms are never truly free. In a democracy and in our democracy, we trade-off individual rights for the collective good. But it must never be done by force or achieved through community apathy or, occasionally, simply inattention. I believe that as a community and as a society, we have to rediscover a way to accept hearing things that we personally do not believe in. That is because if we do not, when it comes to speaking out on the things that are important to us, no-one else will hear you.

John Stuart Mill’s harm principle holds that no one should care about what anyone thinks, says or does or how they behave, as long as one is not encroaching on other people’s privacies and personal liberties to live a free life. I believe Mill’s views remain just as relevant today when assessing what is and what is not free speech and also on how informing us how to regulate free speech if it is likely to lead to disorder. But a basic principle for us all inherent in that is that we do not need to moderate free speech. Instead, it is beholden on all of us to moderate ourselves.

Today, it appears to me that many of those who most vocally assert their right to free speech do not exercise this corresponding responsibility of allowing those who disagree with them to similarly engage in free and frank debate. I have learnt that in public policy debates there are those who that speak to proselytise and who are not open to opinions expressed by others. There are also those who speak not just to be heard but also to hear from others, to learn from others and to challenge their own thinking and points of view. As Noam Chomsky noted:

Goebbels was in favour of free speech for views he liked. So was Stalin. If you’re really in favour of free speech, then you’re in favour of freedom of speech for precisely the views you despise. Otherwise, you’re not in favour of free speech.

I would argue that you are then simply in favour of your own right to free speech and not in favour of everyone else’s right.

The section that has triggered recent renewed and often passionate public debate on this topic were the governments proposed changes to section 18C of the Racial Discrimination Act 1975. Section 18C itself makes it illegal for someone to do a public act which is:

…reasonably likely in all the circumstances to offend, insult, humiliate or intimidate someone on the basis of their race.

Senator Day, in moving his bill today, noted that:

For the rule of law to function properly, a country’s citizens must be able to observe, comment and critique the existence or non-existence of laws, the making of laws and the application thereof in the court system.

These freedoms are so critical to the very existence of a strong democracy and an acceptable way of life. They are recognised in international treaties and conventions, to which Australia is a party.

When reviewing any legislation, including this bill, the intent and context is always very important. It is my understanding that when the act was passed in 1975, the intention was to prohibit racial discrimination in accordance with the International Convention on the Elimination of All Forms of Racial Discrimination.

However, subsequent amendments to the act have extended its reach to the point where many—including myself

—believe it has created a serious imbalance between freedom of speech and racial discrimination. At issue today in Senator Day’s bill is that section 18C of the act restricts even the objective and fair-minded opinion and expression that is common in the Australian community. The amendments proposed by Senator Days to remove the words ‘offend’ and ‘insult’ appear minor, particularly as the words ‘humiliate’ and ‘intimidate’ remain. But as I noted, words are always subjective and therefore contestable. While many in the community might find these words legalistic or technical, the implications of these four words are important for all Australians to understand not just in the context of the Racial Discrimination Act but also more widely in the discussions on freedom of speech.

As the drafters of our Constitution noted, words can often take precedence over the intention or the value that sit behind them. While senators on this side of the House may not regularly turn to Julian Burnside for inspiration on legislative matters, on this topic I find his opinion most instructive. Mr Burnside said that:

The mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability… My personal view is that 18C probably reached a bit far so a bit of fine-tuning would probably be OK …The idea that speech ‘which insults a group’ is arguably going too far.

In fact, the diversity of views within the Human Rights Commission itself reflects the wide range of opinions in the community on this issue, and therefore I believe this issue has a long way to go in the Australian community.

In conclusion, I do commend Senator Day for bringing this bill forward and encouraging debate on what I hope will be a far more wide-ranging debate and discussion in the Australian community on freedom of speech and the balance between our individual liberties and national security restrictions. Tonight I have shared my views and my thoughts on these issues. I encourage all Australians to engage in this debate both privately and publicly.

As your elected representative in our own unique form of democratic government, I need to know your views. I need to know whether I share your views or whether as a community your views are different from mine, because that is what I undertake to do in my role as your elected representative.